The former NSW DPP, Nicholas Cowdery SC, has told the royal commission into child sexual abuse that while he was satisfied with Margaret Cunneen SC's advice that it was unlikely Scott Volkers would be convicted of sexually assaulting three young swimmers, some of the language she'd used in her memo to him was inappropriate. Mr Cowdery had asked for Ms Cunneen's opinion to help him advise the Queensland DPP on whether or not to recharge Volkers after the original charges against him were dropped.

Transcript

ELEANOR HALL: At the latest hearing of the royal commission into child sex abuse, a former New South Wales director of public prosecutions has given evidence that he agreed with a colleague that there wasn't enough evidence to recharge swimming coach Scott Volkers with offences in 2004.

Nicholas Cowdery QC has told the inquiry that he agreed with the advice given to him by crown prosecutor Margaret Cunneen but that he would have used different wording.

The royal commission is examining how prosecutors in Queensland and New South Wales handled the allegations of three women who alleged that Volkers abused them when they were young swimmers.

In Melbourne, Samantha Donovan is following the hearings and joins us now.

So Sam, why is the commission so closely examining this opinion that Margaret Cunneen gave to Nick Cowdery when he was the director of public prosecutions?

SAMANTHA DONOVAN: Well, Eleanor, in 2004 the Queensland DPP was considering recharging swimming coach Scott Volkers with child sex offences. Seven charges against him relating to three victims had been dropped in 2002.

The DPP had faced considerable criticism about that decision, including criticism from the Crime and Misconduct Commission, so the then Queensland DPP Leanne Clare asked her New South Wales counterpart Nick Cowdery for his opinion, and Mr Cowdery got crown prosecutor Margaret Cunneen to write him an internal memorandum to help him advise Ms Clare.

And as we heard at the commission last week it was Mr Cunneen's conclusion about the likelihood of getting a conviction that were instrumental in the decision not to recharge Volkers, and her wording of that advice that so upset the three victims.

ELEANOR HALL: So what did Mr Cowdery say about Ms Cunneen's advice this morning?

SAMANTHA DONOVAN: Well, he's told the commission this morning that Ms Cunneen's advice was in the form that he expected it to be in, he agreed with her recommendation overall. It's clear he largely relied on that for his recommendation to Ms Clare, the Queensland DPP.

But he's agreed a short time ago that he shouldn't have attached the memo to his reply to Ms Clare without further explanation of his thoughts on some of the main issues. Margaret Cunneen in her evidence last week said she'd written the opinion in a sort of legal shorthand between colleagues and she didn't expect the allege victims would ever see it.

Mr Cowdery has said this morning that he thought though that some of her language was a bit unusual and he interpreted some of her advice as a personal opinion.

The commission chairman Peter McClellan has asked Mr Cowdery about what he's thought about some of the wording this morning of alleged offences being described as trivial.

PETER MCCLELLAN: Are these allegations properly described as trivial? Even in comparison, is it proper to describe them as trivial?

NICK COWDERY: I would not use the word trivial to describe them.

PETER MCCLELLAN: And is it reasonable? And you'll appreciate that I've publicly expressed the view that I've learnt a lot in the course of this inquiry about the serious impact of allegations, which some people might describe as trivial. You understand that?

NICK COWDERY: Yes.

PETER MCCLELLAN: But is it proper then to reach a conclusion, for a prosecutor to reach a conclusion, that a doctor's view is almost fanciful?

NICK COWDERY: I don't think the language used is appropriate.

PETER MCCLELLAN: What about the view itself? Do you think that's appropriate for a prosecutor to express that in relation to a doctor's view?

NICK COWDERY: Probably not.

ELEANOR HALL: That's the commission chairman Peter McClellan questioning Nicholas Cowdery, the former DPP. And Sam, are there other parts of the advice that the commission's concerned about?

SAMANTHA DONOVAN: A few things have been highlighted this morning, Eleanor. That little bit that we heard then was in relation to a doctor's advice about one of the allege victims suffering a major depressive event as a result of abuse years early, so that's one of the issues they're looking at quite closely.

They've also been looking at things like the physical reactions young people may experience during a sexual assault and the likelihood as well that a person who'd allegedly been sexually abused by someone would voluntarily have contact with their abuser years later.

All of those issues come up in this case so the commission is looking at Nicholas Cowdery's opinion a little more closely this morning.

ELEANOR HALL: Samantha Donovan at the latest hearing of the royal commission into child sexual abuse there, thank you.